June 28, 2012

The Health Care Cases: “Democrats Win the Battle, but Lose the War … and Don’t Even Seem to Know it Yet” or “How Chief Justice Roberts Got to Have his Cake and Eat it, Too"

I’m baffled by the reaction to today’s ruling in National Federation of Independent Businesses v. Sebelius (which is quickly attaining the nickname “The Health Care Cases.”). Democrats seem to be rejoicing “a win,” in that the Affordable Care Act was upheld. What everyone seems to be ignoring is the fact that the Court also held that: (a) Congress lacked the power to enact the individual mandate under the Commerce Clause; and (b) it also lacks the power under the Spending Clause to withhold Medicare funding to states who refuse to participate in the Medicare expansion. In crowing about this “victory” for the President, I honestly don’t think that Democrats have quite figured out the long-term consequences of what Chief Justice Roberts just pulled off today. But, know this: his feat today is downright historic…

Most people probably don’t care about the Commerce Clause or the Spending Clause. These were just some words of jargon that lawyers were throwing around, and what people really cared about was whether Obamacare would still exist. The elation to be heard outside the Supreme Court building seems to confirm this, and even the commentary by talk radio pundits in the first hours after the decision seemed to focus only on the survival of the ACA. What folks are missing is the fact that the Supreme Court just fundamentally altered (or put back into place, depending upon where you’re standing) the balance of power between states and the federal government.

To be clear, the Commerce Clause is the source of power for the vast majority of federal social legislation. Georgetown Constitutional Law Professor Randy Barnett, the architect of the challenge to the ACA and longtime advocate for curtailing federal power has stated that the original meaning of Congress’s power under the Commerce Clause is that it only extends to “trade in things – goods” and that it merely creates a free-trade zone among the states with Congress regulating matters within the stream of commerce. Barnett’s theory on the ACA is that even if insurance can be deemed a “good,” it still is beyond the reach of the Commerce Clause because the individual mandate compels citizens to enter into commerce rather than merely regulating what is already in it. By seemingly agreeing with this theory today, the Supreme Court arguably calls into question such fundamental social reforms as the Civil Rights Act, workplace safety laws, and minimum wage laws … and yet Democrats are celebrating.

Despite the impact of today’s ruling on the Commerce Clause, Democrats seem just about ready to canonize Chief Justice Roberts, given that he – and not Justice Kennedy, as had been widely expected – provided the swing vote for saving the ACA. Little to do they know, apparently, that what the Chief Justice pulled off today was nothing short of a masterstroke. As a longtime advocate of a conservative approach to interpreting the constitution, the Chief Justice no doubt seeks to reinforce the power dynamic between the states and the federal government. As a former law clerk to then-Associate Justice Rehnquist, he no doubt relishes the opportunity to complete the federalism revolution his former boss started. At the same time, though, Chief Justice Roberts also appreciates the impact of the Court’s actions on its legitimacy and has openly strived to avoid closely-divided or blatantly partisan rulings from the Court.

Today, he somehow was able to achieve those two seemingly incompatible results simultaneously. By narrowing the Commerce Clause, he has substantially undermined the federal government’s power to involve itself in citizen’s lives; but, by casting the deciding vote to uphold the ACA’s individual mandate as a permissible “tax,” he achieves the pragmatic goal of deferring to one of the elected branches of government and showing that the Court is still above politics. He literally got to have his cake and eat it, too, and it shouldn’t be too long until the cognoscenti begin to recognize the sage brilliance of this maneuvering.

So, for now, Democrats are celebrating. Hopefully, the Affordable Care Act will work as advertised and provide health insurance to millions of people who otherwise would have suffered. But, in the not too distant future, we will certainly have to reckon with the real results of today’s decision: “The New Commerce Clause.” Whether that occurs when the Supreme Court invalidates some crucial social policy or whether it occurs when Congress is too timid to legislate, one thing is certain: Chief Justice John Roberts will be in the SCOTUS Hall of Fame, because this guy just pulled off the Kobayashi Maru of constitutional adjudication.